CRI\T\90\89 IN THE HIGH COURT OF LESOTHO
In the matter of :
TLALI SERINE HELD AT BUTHA BUTHE
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
19th day of February, 1992
The accused pleaded guilty to a charge of murder wherein
the Crown alleged that between 1st January, 1989 and 19th January
exact date being unknown to the prosecutor) he unlawfully
and intentionally killed one 'Mamokhotlong Lebota at Matsoku in the
The deceased was an 18 year old girl.
The defence being alive to the inclination of the Crown
to nonetheless lead oral evidence of
PW1 Motintinyane Rabukana PW2 'Mathabiso Letsota PW7
Pheello Mashongoane PW9 John Kitsane
PW11 Det.Trooper Letsoepa admitted the PE depositions of
above witnesses. The Crown accepted the admissions but
nonetheless sought to have PW11's oral evidence led to highlight
of this case. This was done and PW11 accordingly
underwent a brief cross-examination at the end of which both parties
The other admitted depositions were taken as read into
the recording machine and thus made part of the present proceedings.
The Court then heard arguments by respective Counsel.
It is important to note that in tendering his plea of
guilty the accused qualified that plea by adding a rider, to wit "I
guilty but for reasons". His Counsel Mr. Ntihoki
asked to be given an opportunity to confer with the accused. This
was granted. Five hours later the accused gave to the Court his
unqualified plea of guilty to the charge of murder. This long
interval was utilised in proceeding with other cases. Later however
his Counsel rose to indicate that the plea was in accordance with his
PW11 No. 3325 Detective Trooper Letsoepa testified under
oath that the accused led him to certain places following a report
on 19-1-89 from messengers of Matsoku about a dead body
found in a dam in their area. PW11 said when leading
him to the places specified the accused was in a good
and healthy condition. This witness further testified that he had
or done anything untoward to the accused.
On 21-1-89 following the accused's explanation he and
the accused proceeded to a certain place where the accused pointed at
PW11 recorded in his note book the things discovered at
this first place of investigation, namely, the Zion river at Matsoku.
been granted leave to refresh his memory PW11 told the Court
that at this first place the accused showed him
a yellow jersey handed in and marked "Exhibit 1"
a red hat handed in and marked "Exhibit 2"
an off-white panty handed in and marked "Exhibit
All these were contained in a plastic bag.
From this spot the accused led PW11 to Khutlo-Peli river
where the accused showed him
a Pitso Blanket handed in and marked "Exhibit 4"
a brown shawl handed in and marked "Exhibit 5"
a blue dress with spots handed in and marked "Exhibit
a blue and off-white training shoe handed in and
The witness explained that on the ground he found
a bluish handkerchief handed in and marked "Exhibit
8"Inside this handkerchief was found
M120-00 handed in and marked "Exhibit 9".
Thereafter PW11 proceeded to the accused's parents' home
where he was shown
(10) a harmer by the accused, the harmer was handed in
andmarked "Exhibit 10".
PW11 was shown two grudely forged or fashioned
swords(definitely not manufacture made) handed in and collectively
Before that day PW11 said he had also found other items
of clothing,namely (12) a pair of Khaki trousers which he said the
was wearing at the time when PW11 found it. This was later
handed in before Court and marked "Exhibit 12". PW11 also
found (13) a blue and white blanket handed in and marked "Exhibit
13". PW11 further stated that at the accused's home
(14) a green pair of trousers handed in and marked "Exhibit 14".
This witness testified that in the absence of the
accused he was shown many atones by the chief near where the deceased
Some were big others small. PW11 subsequently confronted
the accused with these stones. The accused in turn gave an
explanation. Among the big atones were four
particularly big ones. The accused gave an explanation regarding
PW11 denied that he had assaulted the accused at any
stage before during or after the investigation of this matter. It
was put to
PW11 that in fact the accused even kept running away from
him to another police station because PW11 had been assaulting him.
conceded that indeed the accused escaped from custody while
nothing had been done to him at the previous place where he had been
kept in custody.
Counsel for the accused sought to show that the accused
had been assaulted by PW11 by putting it to this witness that he had
assaulted the accused that the latter was not returned to
him. PW11 conceded that the accused was not returned
to him but was sent to a Magistrate.
PW11 conceded that the accused was not taken to
Mapholaneng police post which is PW11's station but insisted that the
reason the accused
was taken there was not to place him away from a
place of assaults and molestation but only to place him before the
the Magisterial seat at Mokhotlong where the matter
concerning the accused could be worked out.
Asked if it didn't surprise PW11 that while going on
with his investigations the accused when recaptured was not sent to
him but to
PW11's Headquarters at Mokhotlong, he said that at the
time he was through with his investigations.
PW11 was insistent that he had completed his
investigations even though the accused in escaping from his custody
was still in handcuffs
which had to be broken at the place where he
had gone before the second capture or after the first capture.
Asked if it is correct that the trousers were handed to
PW11 by a witness whose depositions were admitted and accepted PW11
by stating that the trousers were found on the accused who
handed them to PW11 in Khitsane's presence. When told that in fact
is Khitsane PW9 who said he seized the khaki trousers from the
accused and handed it to the police PW11 said he was with PW9 and
therefore could not blame him for saying that.
The admitted and accepted evidence of PW9 supports that
of PW11 in regard to events which took place in each other's
PW9 was the chief's messenger who was detailed in that
capacity in response to an alarm raised. He had earlier learnt that
whom he knew very well as they attended church
The alarm raised was in regard to a strange discovery
that had been made at the Khutlo-Peli river. PW9 saw the body of the
at a place near where many other people had gathered.
The body of the deceased was immersed in some collection
of water referred to by witnesses in the Court below as a dam, it
well have been a pool in the river. There were stones on
this body. PW9 observed a blood stained stone the size of a fist.
the place where PW9 observed this stone there was a lot of
blood which had collected in some form of a ditch in the ground.
was also a trace of blood which appeared to have been caused by
either dragging or crawling.
PW9 and others waited for the police who later came. It
is important at this stage to note that because of some previous
which had occurred between the accused and the deceased not
so long before the events that led to the discovery of the deceased's
body; suspicion had been cast on the accused as the culprit.
PW1 Motinyane Rabukana whose PE deposition was admitted
had testified in the Court below that the deceased was his sister. He
also served in the chief's court as an acting Chief of Ha
Khubetsoana. In December 1988 while acting in this
capacity he recalled that the deceased and her grandmother 'Mathabiso
came to his court reporting that the accused had assaulted
the deceased. There was proof of this assault. The accused was sent
for and he stated that he had assaulted the deceased because she (she
was a shepherdess) had let her stock graze on crops.
PW1 wrote a letter referring the then complainant i.e.
the deceased and her assailant to the Mapholaneng police. PW1 had
a letter referring these two to Semenanyana Local Court.
PW1 then asked that the deceased should put up at his
place in order to make for the local court the following day,i.e. the
for the hearing of the matter between the deceased and her
The deceased failed to turn up. The accused did attend
court on the appointed day but the case failed to go on due to the
It thus would seem that the motive for the killing was
to stop the deceased relating the incident of her assault by the
Court and consequently the accused thereby escaping
whatever punishment the local court would have imposed on him if
Indeed PW9's anxiety heightened when he received a child
sent to him by 'Mathabiso inquiring about the deceased's whereabouts
day following the deceased's supposed day in Court.
Apparently the deceased who had complied with PW9's request to put up
place before proceeding to Court the following day had failed
to reach PW9's place because she was interrupted in her way to PW9's
place from her grandmother's where preparations had been effected and
permission granted to enable her to go to PW9's place for the
preceding the Court day that was never to be.
Going back to PW9's evidence: This witness stated that
following an instruction per police letter, he and others helped
body from the water. Some time during the day a man
identified as the accused was seen sitting some distance away near
body had been removed. Attempts to catch him failed. It
had been noted that he had not been seen home for some time. A day
two afterwards PW5 Lebese Borotho captured the accused and brought
him to PW9 and others. He was kept at the chief's place where
escaped leaving his gumboots. Because this witness had on the
previous occasion when searching at the accused's parents' home
noticed that there were white shoes belonging to the accused, he
looked for these when he learnt that the accused had escaped, no
doubt, on bare feet from the chief's place. Thus the absence of the
white pair of shoes created the
impression that the shoes at his home were removed by
the accused himself after his escape from the chief's place. It was
this process that PW9 found an axe which appeared to have been
used for cutting something hard. This axe seemed to have been
used. PW9 seized it and handed it to the police. The back
of the axe seemed to have also been used.
A search was mounted for the accused. He was seen
across a slope, rushed at and captured. The handcuffs which he had
had been separated by cutting the connecting middle.
PW9 heard the accused say that he was going to point out the
These were the items of clothing attested to by
PW11. The accused within PW9's hearing instructed his wife to
produce a sabre used
in finishing the deceased off. The wife fetched
and produced it from the front thatching of the accused's hut and
handed it to PW9
who handed it over to the police who were in
attendance during the occurrence of these events,
PW9's admitted evidence at PE supports that of PW11 as
to the excursion to the river where a plastic bag containing the
items of clothing
mentioned was found. It also corroborates PW11's
evidence to the effect that next to where the body had been lying the
stones below a cluster of grass amongst which were
found a brown shawl and a floral dress. There
was corroboration as to the blood-stained handkerchief,
the M120-00 contained therein and the canvass shoe. PW9 indicated
things were also soiled with mud. He also told the Court
below that the accused indicated where he had started chasing after
deceased, where he had hidden himself, how far he had chased her
and where he had hit her with a stone. These acts of admission
the part of the accused are not inadmissible because they were
purveyed before lay people and if in the process the police happened
to be present they are still admissible because on the authority of
Petlane vs Rex 1971-73 LLR p.85 by Milne JA in making the
admissions the accused did not say that he had intentionally killed
the deceased nor could
possibility of self-defence have been
excluded. In fact it is stated in that authority that
"Although the surrounding circumstances may be
taken into account in deciding whether a statement amounts to a
fact that the appellant knew when he made the
statement that the police were looking for him in connection with the
killing of the
deceased could not have the effect of making his
statement a confession of the offence with which he was subsequently
the statement did not exclude the possible defences of
self-defence or accident. Further, the fact that it transpired at
that if such defences had been raised they would not have
been maintainable could not operate to turn the appellant's statement
the police into an unequivocal confession of murder".
('Mathabiso Letsota) PW2's evidence is important in so
far as it shows that she had released the deceased to go and put up
at PW1's home. When the court day had gone past the
previous day without the deceased showing up she sent children to
her at PW1's place, naturally.
She actually at a later stage met with PW1 who evidently
could not ait back after hearing of the deceased's failure to show up
he himself had spent, not doubt, anxious hours wondering why she
had failed to turn up for their appointment the previous day, and
after his hopes to perhaps find her at Court were dashed by the
deceased's failure to attend court even.
It was during this meeting on the way that PW2 referred
to the money in the amount of M120-00 which PW2 had meant the
hand over to PW1 for the purchase of a blanket for the
deceased's sister. The money had been wrapped in a handkerchief in
(Pheello Mashongoane) PW7's evidence is important to the
extent that it shows that while he was herding after cattle his dog
roading for what PW7 thought was small game like rabbits or
rats. At the end of the trail the dog had blazed PW7 discovered to
horror that his dog had helped him discover the dead body of the
deceased in a dam. Having taken fright he raised an alarm to which
villagers responded by heading for the
PW2's evidence supports that of PW1 as to the assault
that led to the laying of charges against the accused. PW2 gave the
of the cloths which the deceased wore when intending to
go to Court.
These are the cloths which were handed to PW11 who was
led to them by the accused. Some of them were found where the body
Others were found in a different rivulet where the
accused alone could have known of their presence. PW2 was present
when the accused
went to some rocks under which he retrieved the
handkerchief in which the M120-00' was done up. She identified the
as hers and the money as that which she had asked the
deceased to convey to PW1.
PW11 is the investigating officer who told the Court
that he examined the body of the deceased. The body was discovered
weeks after the deceased's disappearance. The body
according to PW11 appeared to be bloated. There were open wounds on
The right eye was depressed. The private parts appeared
to have been cut off.
This Court saw some of the stones PW11 referred to in
his evidence as having been found around the body. It was stated by
PW9 that some of them were used to submerge the
deceased's body under the water with the clear purpose of insuring
that it should
never be discovered.
PW11 told the Court that one of the pairs of trousers
retrieved from the accused bore what looked like blood stains. He is
by PW9 in this.
Evidence further revealed that some of the stones found
in the dam bore what seemed like brain matter. Some of the stones
a different area where hairs were also observed were too big
for PW11 to pick up. The accused gave explanations to PW11 with
to blood stains on stones around the scenes. There is also
evidence of pointing out.
The Court has realised that as there was no eye witness
to the killing the evidence on which the case is based is
With regard to this the Court was referred to Rex vs
Blom 1939 AD 188 a case famed for the authoritative and clear
statement of the law regarding circumstantial evidence. This Court
to look at Ghofamodimo vs State No.4\84 by
Maisels P. (as he then was) sitting in the Botswana Court of
Appeal. In that case Maisels P. was faced with the
situation where the body was missing. That Court had to draw
inferences to confirm
the lower Court's verdict that the appellant
The logical conclusion one is led to by the evidence
should derive from the previous history of the assault substantiated
B" a medical form. Parties in that case of
assault supported by "Exhibit B" were the deceased and the
deceased never reached the Court despite evidence of
her willingness to go there. Her body was found with brutal
it could not be farfetched to conclude that whoever
inflicted the injuries had the clear intent to put an end to the
before the local Court.
The post mortem is once more an egregious apology for a
document that should be informative to the court dealing with as
case as this. With respect to what the cause of death is
it says "no obvious reason found". Little wonder then that
Crown in its submissions told the Court that it does not rely on
the post mortem report.
The Crown further submitted that the case against the
accused based exclusively upon circumstantial evidence would not
it not for the accused's pointing out. But the
additional factor of the accused's disappearance which
was simultaneous with that of the deceased reasonably cast an aura of
around him. Furthermore his presence around the scene, no
doubt, brought about by the fact that his plan to keep the body of
deceased under water where he had hoped it would eternally remain
undetected, had back fired in the sense that the body had,
become and kept partially afloat. Finally, having been
seen near where the body had been and realising that he was observed
contact with people he must have appreciated were
concerned with the fate of the deceased and how it had come about.
It could even
be thought he had gone to the scene in order to once
more sink the body so as to remain under water and never be detected.
Before July last year the law was that the pointing out
even if secured as a result of impropriety on the part of the police
be admissible notwithstanding the impropriety. That is no
longer the case. Hence the importance of PW11's testimony that he
done nothing untoward to the accused to induce him to point out
spots where items of the deceased's clothing were retrieved. See
Mabope & Others vs R C. of A (CRI) No.5 of 1986
(unreported). PW11 strongly denied the suggestion that he had
assaulted the accused as a result of which
accused even ran away to
another policeman. Mr. Sakoane submitted that it is
farfetched for an accused person to run from one
policeman to another. He chose to rely on the inference sought to be
the fact that the victim and the accused were referred to
Court. For some unknown and unfathomable reason that defies
the victim failed to show up. But the accused later
leads the police to the place where the cloths which had been worn by
The learned Crown Counsel invited the Court to consider
five possibilities that might have let the accused know about the
that the accused saw the murder and orparticipated
that if he did not commit the murder hesaw others
do so and secret the body tothe dam
that he didn't see when the deceased wasmurdered
but only saw where various clothswere secreted to various places
where he ledinvestigating officers
that he neither saw the commission of thecrime nor
people who did it but learned froma third party where these
that by accident he might have come across
Having eliminated all of these possibilities except one
that the accused is solely responsible for the murder Learned Counsel
out that the accused had a motive for the killing. He
further brought to the Court's attention that the
accused did not say that police brought him to the place of the
pointing out. Nor
was there a suggestion that the defence was that
the items of clothing were planted where he was forced to smell them
out. Nor was
it suggested he was schooled by police to say where
these things were.
The accused does not deny murdering the deceased. He
closed his case without giving evidence. See, R vs Nyathi
1916 AD 342. See also R vs Theron 1968(4) SA 61 at 63-4.
The Crown submitted that because the defence closed its
case when the prosecution had established a prima facie case
against the accused then the Crown's case becomes conclusive. It was
further argued that the accused's silence in this regard
decisive and should be interpreted in favour of the Crown. I however
think the true position in law is that at the close
of the case for
the defence where no evidence was given by the defence the proper
question is no longer whether there is evidence
led by the Crown on
the basis of which the Court might convict but whether on the basis
of the evidence led the Crown has discharged
the onus by proving the
accused guilty beyond reasonable doubt. The earlier question only
becomes relevant at the stage where there
is application for the
discharge of the
-19-accused and not after the close of the defence
The Court was referred to the case of Mohlalisi
in connection with the fact that the accused had pleaded guilty. The
Court was accordingly invited not to ignore the effect of such
Indeed in Stephen Tsatsane vs Rex 1974-75 LLR 105
at 109 Maisels P. (as he then was) quoted with approval a passage
from the South African Law of Evidence 2nd Ed. by Hoffman at
p.305 where the legal position is stated correctly as follows ;
"A formal admission is made for purposes of
particular proceedings and is only binding
in those proceedings The
difference is that in the proceedings in which it was
made the formal admission is conclusive, but in other proceedings it
to the accused to explain it away. The same is true of a
formal admission which has been withdrawn. The fact that such a
was made remains an item of evidence against the accused
which the Court is entitled to consider, although it may carry little
if the accused has a satisfactory explanation for why it was
made. The same is true of a withdrawn plea of guilty. A plea of
is in effect a formal admission of the essential elements of
the charge. Even after withdrawal, the fact that it was made is
which the court is entitled to consider".
In the instant matter the plea was not withdrawn but Mr.
Ntlhoki for the defence wished in submissions to so water it down
as to invite the Court to ignore it.
He submitted that despite the accused's plea of guilty
the conviction of murder would not be sustainable because the
in itself is an unsworn statement that he is guilty.
Placed side by side with the statement at the end of the quotation
the soundness of this submission escapes me. However Mr.
Ntlhoki further pointed out that the Crown has sought to say that
this bare allegation i.e. plea of guilty supports its case.
Pointing out that the Crown has to still establish its
case despite entry of the plea of guilty the learned defence Counsel
to section 240(1)(a) of our Criminal Procedure and Evidence
Act 1981 and contended that despite the accused's plea of guilty in a
murder case the Court has nevertheless to hear evidence.
He pointed out that what happened in this case is that
the accused made admissions of depositions referred to earlier. He
that it could be argued that because of an agreement the
depositions were taken as read except that of Trooper Letsoela. (I
while at this point out that the recording machine was often
going out of order while this Court was sitting at Butha Buthe
any possibility of quick repairs in sight. This was
compounded by electricity outages leaving the Court with no option
but with concurrence
of both Counsel to proceed in the
manner courts followed before the advent of mechanical
Mr. Ntlhoki arguing in this vein pointed out that
if indeed the reading of the PE depositions amounted to evidence such
evidence merely served
to show that the deceased disappeared and the
body was later discovered followed by the accused's arrest; followed
in turn by discovery
of certain items of clothing. The learned
Counsel pointed out that PW11's oral evidence seemed to have been
for the purpose of showing that the pointing out was done
voluntarily. He said that when admitting this witness's PE
the defence was aware that such deposition had not
canvassed the voluntary aspect in the pointing out. Learned Counsel
said in admitting
such deposition the accused was prepared to take a
risk that the pointing out was voluntary. He argued further that now
Crown has raised it, it is fitting that the defence should
challenge the voluntariness in the pointing out, for otherwise if the
Crown had not raised this the Court would be entitled to say the
pointing out was voluntary.
The learned Counsel pointed out that once this has been
raised and challenged it is incumbent upon the Crown to
the suggestion that PW11 had assaulted the
accused. He further argued that because the Crown had
failed to do so when having ample opportunity to do so the Court
that PW11 had in fact assaulted the accused. He
pointed out that PW11's deposition shows that PW1 was for a large
part present during
investigation as well as at the pointing out yet
the Crown did not call him to corroborate PW11. He suggested that
PW9 could also
have been called to corroborate PW11.
Mr. Ntlhoki submitted that PW11 is not reliable
as a witness for denying assaults on the accused because the accused
escaped from his custody
only to be placed under the custody of
another policeman from whom he never escaped.
But the evidence that I considered from the PE
depositions shows that he had also escaped from the Chief's place
where no allegation
of assault against the Chief's men who had kept
watch over him was made. Furthermore on 10-6-91 a Bench Warrant had
to be issued
for the arrest of the accused after the Court heard the
evidence of Trooper Letsoepa that notwithstanding that he had seen
on the previous Wednesday and informed him that the case
was to proceed on 10-6-91 the accused failed to attend Court. This
had taken the trouble to give the accused this information in
the presence of the accuse's Chief at the Chief's place. Needless
say after the accused's capture his bail was cancelled.
Mr. Ntlhoki referred me to Mabope
by Ackermann J.A. for the proposition that evidence of pointing
out as a result of assaults is no longer admissible and sought to
persuade the Court to the view that the accused had been assaulted
and therefore any evidence of pointing out elicited by assaults
should be discarded and that because, short of the pointing out
nothing connects the accused to the crime charged he should be
as no eye witness has testified to the fact of murder.
Mr. Ntlhoki submitted that where the accused
fails to testify the Crown's case cannot be conclusive unless his
guilt could be inferred with a
great degree of certainty.
. In reply Mr. Sakoane reacted to the submission
that there is no evidence before this Court despite that Section
240(1) of the Criminal Procedure and Evidence
requires that it be
supplied, by pointing out that the Court has before it the PE
depositions which were admitted by the defence
and accepted by the
Crown. In support of the view that such depositions constitute
evidence he referred the Court to Hoffman's 3rd Ed. at p.333.
While an analogous section in the Republic of South Africa contents
itself with "proof of the facts"
our Section 273 goes a
step further and talks about "sufficient evidence". Thus
it is not accurate that all the Crown
has is the accused's plea of
guilty minus evidence.
Over and above the evidence placed before Court the
Court is entitled to consider the question of the accused's plea to
as pointed out earlier in Hoffman's 2nd Ed. See
also S vs Kanyile and Another 1968(1) SA 201 where the accused
elected to remain silent in a case where pointing out featured.
By his plea the accused over and above the evidence
agrees with the elements alleged in the charge.
Hoffman further indicates that even where a plea
of guilty is withdrawn the Court is entitled to consider that it had
been tendered. In
this case the plea has remained of force
throughout the trial. In CRI\T\17\80 Rex vs Mohlalisi and 2
Others (unreported) at p. 14 Mofokeng J (as he then was)
extracted a passage in Rex vs Kumalo and Another 1930 AD 193
at 207 where the principle was put with terse lucidity by Stratford
J.A. as follows :
"The formal withdrawal of a plea of guilty no doubt
gives the accused the right to full trial on the issue of his guilt
does not alter the fact, if it is the fact, that he has
solemnly and freely admitted his guilt; that confession stands as
evidence. The accused may, of course, retract his
confession and explain how he came to make it, but even then the
trial Court may
reject the explanation and believe the confession".
Mofokeng J's words are instructive as he stated
"This accused, in my view, pleaded guilty with
deliberateness. There was no misunderstanding of any kind
was therefore, a judicial confession of all material
in the murder charge.
"The accused has not explained to me the
circumstances of how he came to make such a confession before me".
It should also be noted that submissions made by the
defence where the accused has given no evidence tend to hinge on
Suffice it to say that the Court is not entitled to
speculate but to consider concrete evidence before it.
I am alive to the fact that the Court should rely on
evidence and inferences which can legitimately be drawn from such
not from imagination. The question of how to deal with
an accused person who closes his case at the close of Crown case
giving evidence has been dealt with at length by various
authorities. I wish to rely on the statement in Rex vs Basotho
Makhethe and Others CRI\T\32\78 (unreported) at pp 13 and 14, to
"But when the defence has closed its case without
leading evidence, the question to be decided is : has the Crown
the charge beyond reasonable doubt. The Court, when
considering this position, is entitled to consider the fact that
given no evidence".
In Ex vs Nyati 1916 AD 342 the words of Innes
C.J. are as
"Where there is evidence entitled to credence which
directly implicated the accused person, the fact that he refrains
evidence may well be regarded as a necessary element to
be taken into consideration and weighed with all others in the case
in mind always that the onus is on the Crown".
PW11 was cross-examined with a view to establishing that
the accused had been assaulted hence his pointing out the various
where various items were retrieved. But PW11 denied this. The
purpose of cross-examination is to elicit from a witness evidence
that contradicts his on crucial points. Where an allegation that has
not been backed up by any explanation, is denied the Court
nothing to go by. It would be extremely difficult for the Court to
reject evidence denying certain charges of assault as false
if it is
left in the dark by the accused who does not tell it how he was
assaulted. In such a case PW11's evidence remains unchallenged
the evidential burden has shifted to the other side. I should hasten
to say by this is not meant that the onus has at all shifted
from the Crown to prove its case beyond doubt. The burden remains on
It should suffice therefore to say once admitted the
Crown's evidence becomes a weighty element in the determination of
because it remains unchallenged. No evidence has been led
to show that the accused's detention was not lawful. To say
anything to the contrary in the face of this amounts to
speculation that he was unlawfully detained and all that followed was
Counsel for the Crown submitted that even assuming that
the evidence of pointing out is not admissible given the
and the accused's plea it would be idle to
surmise that the charge is not sustainable.
Learned Counsel urged the Court to disregard the case of
S vs Khomo and Others 1975(1) SA 344 as irrelevant for
it deals with direct as opposed to circumstantial implication.
Indeed the accused freely tendered his plea of guilty
before this Court. This in itself would go a long way in negativing
made on his behalf that things he is alleged to have
done he did under pressure when in fact not done under pressure. In
there is no evidence that the accused was under any
pressure at the time of pointing out. Any that was suggested under
This is a very serious crime effected without regard to
a fellow human being's life. Every effort was employed to conceal
of its accomplishment. The motive in carrying out this
crime was plainly to thwart the victim's resort to courts of law
which have been established for the orderly solution and
settlement of conflicts and disputes between parties. From the
its execution and the plan that was employed to avoid
detection it seems this crime was premeditated, and the disposal of
went according to plan. The injuries consisted of broken
jaw and severe injuries on the skull with the result that brain
was stuck on some stones. There is no gainsaying the fact
that the skull constitutes a vital part of the body. Hitting a
girl with a heavy object or with an object on the head
with such force as to break the skull and let out brain tissue
else but wrongful intent. The mutilation of the
body especially the private parts indicates contempt with which the
The Court finds the accused guilty of murder as charged.
My assessors agree.
J U D G E 19th February, 1992
After being convicted of the murder of 'Mamokhotlong
Lebota the accused gave evidence upon which he was cross-examined and
Mr. Ntlhoki and Mr. Sakoane for the defence and
for the Crown respectively addressed the Court on the question of
It is settled law that the onus of establishing, on a
balance of probabilities, the existence of extenuating circumstances
The preparatory examination covering sheet reveals that
as at the date of his arrest i.e. 30 January 1989 the accused was
In his evidence on oath the accused told the Court that
some time towards the end of 1988 the flocks of sheep belonging to
and the deceased's relatives co-herded by the deceased
strayed and grazed on some crops destroying them. The accused
deceased by flogging her for this act of carelessness.
The deceased's parents laid a charge against the accused
assaulting the deceased. The case was due to be heard
at Semenanyana Local Court the following day. The deceased did not
The accused informed the Court that the day when the
deceased died he was from his sister's place near Motintinyane, the
the deceased seemed to be bound for.
The accused told the Court that he recalled that he was
drunk and had also been smoking dagga. He and the deceased met along
way. He asked the deceased where she was going. Then the
deceased replied that the accused should not ask her that. When the
answered as stated above the accused told the Court that he
just found himself having picked a stone and hit the deceased with
He went further to say he realised that he had finished the
deceased. Thereupon he felt ill at ease or embarrassed hence he
the deceased to a pool of water where he placed some stones
on her after undressing her in order to create an impression that she
had been waylaid and her assailants who had wanted to rob her had
robbed her of her cloths.
He further testified that he left the deceased there and
went away. He was subsequently arrested but before the arrest he had
with the deceased's father after the incident. He says
he confessed to the deceased's father about the incident
and asked for forgiveness as well as undertaking to raise the
head by way of paying compensation to the deceased's
family. He however has not done so yet and would wish the Court to
punishment on him as would enable him to be as good as
his word to the deceased's father who had accepted his apology for
of the deceased.
He told the Court that he is not a regular drinker but
is only learning to drink. Nor is he a regular smoker of dagga. That
says he had taken three scales of Sesotho beer and smoked two
rolls of dagga one of which he finished smoking along the way before
he met the deceased. The reason, he said, for smoking dagga was that
he had been advised by someone to do so in order to remedy
tendency to faint.
The accused said he is semi-literate and works as a
farming peasant who also looks after live-stock. He is married and
He told the Court that he never premeditated the
deceased's death nor had he motive to kill her in order to ensure
that she did not
reach the Semenanyana Local Court where he and the
deceased were due to appear the following day concerning charges she
or her parents
had pressed against him.
He further told the Court that he had taken the
deceased's parents' suit against him seriously, moreso because it had
that as a result of that suit the accused's live-stock
would be forfeited. He pointed out he had not been sued before.
He reiterated that he was remorseful about the
Evidence revealed that the accused and the deceased were
closely related. The accused clarified that this together with the
that he was at peace with the deceased's parents accounted for
the fact that his and the deceased's relatives'sheep (including
her parents') were herded together. He acknowledged that
people who are so closely related treat each other with
that in the event of differences between them a report
is made to the next of kin at the earliest opportunity or an apology
to the party wronged.
He stated that on the fateful day the deceased was going
to PW1's home while he was coming from his sister 'Mathebe Mofolo's
lying in the same direction that the deceased was headed for.
He estimated that it would take two hours to walk normally between
his home and this place called Motintinyane. He met the deceased
about half-way between these places. The spot where
they met was far from where people could hear even if
she screamed as she did.
At the time the accused met with the deceased the sun
was about to set and (mountain) shades had become long.
The accused stated that he was aware of a
misunderstanding that arose between him and the deceased's parents as
a result of his having
whipped the deceased for letting sheep graze
He prefers calling this a misunderstanding in response
to the question referring to it as a quarrel. As a result of this
whipping the deceased's parents had decided to sue him
and he feared he was going to lose his animals as a result. The case
proceed the next day after the killing. Given all this, the
accused wishes this Court to believe that when he approached the
father the latter accepted his apology and hung on to the
accused's word that he would pay compensation. For the court
accept this it means the deceased's father made nothing of the
anxiety of PW1 and PW2 about the deceased's disappearance, and that
he failed to reveal, when attempts were directed everywhere to find
the deceased, that the accused had at least told him that he
where the deceased was. This account given by the accused of the
deceased's father's conduct is most absurd.
The Court has observed at page 2 of the admitted
depositions of PW1 that the following is recorded
"Later deceased came with a letter directing me to
refer the case to Semenanyana Local court. I called accused and
him to go to Semenanyana on some days to follow (sic.
That day 'Mamokhotlong now deceased was before me. I instructed the
to go and put up at my place so that we would fare it
From this extract it may not be farfetched to deduce
that the accused learnt that the deceased was to go and put up at
on the day the deceased met her death. However I think
that in the absence of oral evidence led in this Court to
that the accused obtained the information from PW1
that the deceased was going to put up at his place for the night it
be rash to make any such inference. Be that as it may the
accused made a merit of the fact that he felt remorseful for his act
his decision not to disclose to PW1 that the deceased would not
attend Court on the day to which the case was postponed by PW1.
that time the accused knew that the postponement was in vain but
under colour of remorse he kept up the lie that the deceased
attend Court, implying she was still alive when he knew he had killed
In CRIM. CASE NO. 85\86 THE QUEEN vs SIMON MOSA MPOFP
(unreported) at page 2 relating to the question of remorse Dunn
A.J. in Swaziland said
"The fact that an accused person is unable to to
live with his conscience does not necessarily reflect the state of
mind in which
he was at the time of the commission of the crime.
There must, I imagine, be lots of persons who are haunted by the
thought of the
undetected crimes they have committed without showing
any remorse. See S vs X 1974(1) SA 344 at 347 H to 348 A"
The accused after committing the murder immediately
thereafter concealed the body to avoid detection. He says he hid the
show his remorse. This is difficult to accept.
He further said a combination of the effect of Sesotho
beer he had drunk and the dagga he had smoked is accountable for the
he felt when an innocent answer was given that he should
not ask the deceased the question he had put to her. First, there is
provocative in the words allegedly used to provoke the
accused. Mr. Ntlhoki advised in submissions that much would
depend on the tone in which the words were uttered. But no evidence
in re-examination was
led to substantiate this new found notion
despite that under cross-examination the Crown strenuously and in my
showed that there was nothing provocative in the
expression allegedly uttered by the deceased to warrant the fate she
was made to
suffer at the accused's hands. Even if for argument's
sake the use of the first stone hurled at the deceased felling her to
ground was in response to her alleged utterance of the expression
that provoked the accused in the absence of evidence that the
deceased's provocation was not desisted from it does not
seem justified that two more stones were used to bash her skull with
result that brain tissue even came out.
Mr. Ntlhoki argued that the Court should pay
particular attention to the fact that the accused kept lingering
around the vicinity of the scene
and urged the Court that this
strange behaviour should persuade the Court to the view that the
accused was somewhat not in full control
of his mental faculties when
he committed the crime. But Schutz J.A. in C. of A.(CRI) No.2 of
1982 Manamolela and 8 Others vs Rex (unreported) at 34 said
"suspects do, of course, do stupid things in
moments of panic or desperation"
At p.35 the same learned Judge said
"Again, of course, I must concede that suspects
sometimes do behave stupidly under the pressure of events".
While the accused said that the intake of liquor and
smoking of dagga should be regarded as extenuating his crime more
that he was a novice in the taking and use of habit-making
drink and dagga, it emerged in evidence that he recalled his acts at
time of committing the offence with clarity that defied that his
mind was befuddled by the effect of drink and dagga. He illustrated
with clarity and maintained good sequence in narrating the use he
made of three stones to kill the deceased. He related the next
he took of dragging the body
to the dam; then undressing the deceased, dropping her
into the water and applying rocks on top of the body to ensure that
not later surface. Ultimately he kept the lie alive by not
enlightening the Court president who postponed his and the deceased's
case to a later date that the deceased would never attend Court.
Learned Counsel for the Crown urged the Court to reject
the contention that the accused had taken any liquor or dagga; moreso
these two things and their effect on the accused's mind could
have been pleaded as his defence at trial. Learned Counsel pointed
out that the fact that they were not pleaded shows that the accused
had no him faith in them as a defence in the first place. With
regard to what effect the alleged intake of beer and the smoking of
dagga had on the accused said he had no knowledge of what effect
these things had on him because he said he used not to drink or mix
drink with dagga.
"All the more reason why if you are not an addict
you should have felt the difference . .. . ? I don't know.
But you remember the facts very well on that day: the
size of the stones used, their number; when the deceased died and how
the body, undressed it and sunk it under water....? Yes.
Those are ways not of a drunken man but of a cunning
one....? I don't know.
You want to avoid the question. You behavedlike a
sober man ? I don't know if I was
drunk. But I am relating what happened."
In its attempt to find if there are extenuating
circumstances in a case the Court is at large to consider the
evidence on merits before
the verdict in the main trial. The
evidence that has been admitted at that stage of the proceeding does
not give any inkling of
the accused having taken any liquor or smoked
dagga. No suggestion was made to even the only Crown witness who
gave oral evidence
that the accused had his mind befuddled by these
things. His resort to them at this stage amounts to a last minute
attempt at clutching
at the straw of a drowning man.
Evidence showed that the accused was not happy that the
implication of the case pending before the local court was that he
his animals to the deceased's parents. His anger,
instead of being vented on the parents, is vented on the deceased.
In C. of A.(CRI) No.l of 1967 Motlatsi Ntsukunyane vs
Rex (unreported) at 4 SCHREINER J.A. (as he then was) said
"The element of provocation was said to consist,
against a background of irritation caused by the land litigation, of
instruction to the appellant's son to produce the
fodder, and his insulting language used in the following
In rejecting the contention that extenuating
circumstances existed the learned Appeal Judge said at p.5 :
"The provocative features, such as they were, were
not such as to reduce the moral blame-worthiness of the appellant's
in reloading his gun and shooting the prostrate, helpless man
in the face from a distance of a few feet."
In the instant matter it is doubtful that use of further
stones to finish off the deceased who had been felled by the first
hurled at her at a distance could help reduce the conduct of
the accused's moral blameworthiness. The added factor that the
appears to have been committed in order to thwart the
impending Court case between the accused and the deceased, would in
view tend to aggravate the offence.
It was further argued that the accused did not
premeditate the killing of the deceased and that the conviction was
on the basis of
dolus eventualis. There is evidence from
which it is deducible that the accused bore the deceased a grudge
because the deceased reported the assault
meted out to her by the
accused. Following this report the deceased's parents took the matter
to Court. It is this action that motivated
the accused to kill the
deceased in order that the case could not proceed; and in the process
his stock might be saved from probable
But in Mohlalisi and Others vs
Rex 1981(2) LLR 394
Schutz J.A. (as he then was) sitting with Van Winsen
J.A. and Rooney J, said at p.403 :
"The question accordingly to be considered is
whether the fact that appellants did not premeditate the killing of
but acted dolo eventualis consistutes, in the
context of the circumstances of this case, an extenuating
circumstance. It is trite law that a finding that
a murder was
committed with only a constructive intent does not by itself and
without more establish an existence of an extenuating
See S vs Sebiko 1968(1) SA 495(AD) at p.497 E-D, S. vs De
Bruyn en 'n Ander 1968(4) 498(AD) at p.500 E-G. On the other
hand such a finding may correctly be had regard to and in conjunction
with other relevant
circumstances present in a particular case in
order to determine whether there are factors rendering the conduct of
The Court has had consideration of all relevant
arguments raised, including paying attention to the accused's
evidence at this stage
of proceedings and has come to the conclusion
that apart from the absence of extenuating circumstances what has
clearly been shown
is an aggravating feature instead; namely, that
the killing was effected to frustrate the administration of justice.
had to this factor and all circumstances of the case
considered the absence of dolus directus on the part of the
accused's conduct cannot avail him an extenuating circumstance.
The Court finds that there are no extenuating
circumstances in this case.
Registrar: Will the accused say why the death sentence
should not be imposed.
Accused's answer: I had not intended the death of this
person so it just so happens.
SENTENCE; You will be removed from where you
are standing and taken back in custody where on an appointed day and
time you will suffer death
by hanging by the neck till you are dead.
May God have mercy on your Soul. My assessors agree.
26th February, 1992
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